Details

Published on Thursday, 28 March 2013 14:05

Written by H. R. Vasujith Ram

Phone Tapping Laws in India : An Overview

We have all seen plot changing twists taking place in movies after a phone tapping and recording incident. Many phone tapping controversies have struck the Indian political scenario, bringing into limelight the phone tapping laws in India. Multiple phones are being tapped everyday in India on a wide scale. The Radia Tapes controversy and the phone tapping of many political leaders (Zail Singh controversy, Ramachandra Hegde controversy, etc.) calls for a study of the laws in India with respect to phone tapping.

The basic law in India with regard to phone tapping is Section 5(2) of the Indian Telegraph Act 1885. The procedural provisions are contained in Rule 419A of the Indian Telegraph Rules, 1951. This rule was however amended in 2007, thereby tightening the laws regarding tapping of phones. The 2007 amendment was a result of a petition filed in the Supreme Court after the Amar Singh phone tapping storm. As a result of this amendment only the Union and State Home Secretaries have the power to order interception of any messages. With stricter rules, any sloppiness on the part of the telephone service providers will be met with measures like revocation of licenses. With regard to the procedure on tapping phones, Indian Express has an informative article.

Another interesting point to note at this stage is that, in today’s age many phone calls are made via the internet medium (Skype, for example). Section 69 of the Information Technology (Amendment) Act, 2008, deals with the power to issue directions for interception or monitoring or decryption of any information through any computer resource. In the Information Technology Act, 2000, "computer resource" means computer, computer system, computer network, data, computer data base or software. This leaves such an ambiguous and wide scope of powers, including powers to intercept internet calls.

The primary argument against phone tapping is the right to privacy. Under Article 21 of the Constitution, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to privacy is implicit in the ambit of the Article 21, as held by previous Supreme Court cases like Govind v State of Madhya Pradesh (AIR 1975 SC 1378). In Rayala M. Bhuvaneswari v Nagaphanender Rayala (AIR 2008 AP 98) it was held that the act of recording conversation of his wife by the husband (without her knowledge) is in violation of her right to privacy under Article 21.

In PUCL v. Union of India, AIR 1997 SC 568, where the constitutional validity of Section 5 of the Indian Telegraph Act, 1885 was challenged, the Supreme Court said that people do have a right to hold private conversations in the privacy of their homes or offices since telephonic conversations are an everyday part of a person's private life. But the Court laid down that officials could pass an order of interception only after recording its satisfaction that it is “necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence”.

We however need to understand that right to privacy is not absolute and is subject to procedure established by law. Thus there cannot be a complete ban on phone tapping. The rationale behind allowing phone tapping is theoretically in public interest, and thus a blanket ban will be impermissible.

The Indian Telegraph Act, 1885 is an archaic law. Though the Act was originally passed for telegraph, an amendment since then covers all existing modes of communication, including telephone and the cellphone. We need to understand that the act was passed by the British Raj, which at that time was extending control over the Indian Territory. The justification given is that the law is “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing.” Thus an anachronistic law is only ineffective in today’s world. Much was expected of the Telecom Policy 2012, but it only talks about building “national capacity” in interception of critical telecom equipment. We need, as Mr. Advani suggested, a committee to submit a report on the lines of the Birkett Committee in Britain which submitted a report on interception of communications. There is thus a need for an up-to-date and studied law, in the wake of recent controversies. Blatant misuse of these powers must be curbed if in India is not become an eavesdropper’s delight.

So what can we citizens, if aggrieved, do? The affected citizen can go to court under section 26(b) of the Indian Telegraph Act 1885. Three years’ imprisonment, fine or both is provided for unauthorized tapping and/or unauthorized disclosing of the contents. Since it is a violation of the right to privacy, one can move to any of the Human Rights Commissions. An FIR can also be lodged in the nearest police station immediately.

Image taken from here.

Comment

Details

Published on Sunday, 10 February 2013 17:41

Written by Anirudh Dhawan

New law to protect Canadians from spam messages

The Canadian Government is close to passing a new legislation which provides for more stringent regulations in order to curb spam messages and other related online threats. Canada’s Anti-Spam Legislation (CASL) intends to pre-empt any sort of online fraud or identity theft that could be committed through unsolicited spam messages and seeks to prevent any damages that might be caused by these messages. Tabled initially as Fighting Internet and Wireless Spam Bill (Bill C-28) in 2010, this would be the first anti-spam legislation in the country. Canada is currently the only G-8 nation that has no express anti-spam legislation, despite its stringent internet privacy legislation. CASL is expected to be enacted in late 2013.

Although it is similar to a corresponding legislation in the United States, Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), the Canadian law is more stringent that its US counterpart. CASL has an opt-in consent facility, by which, commercial messages will not be illegal if receivers opt to receive these messages, this is unlike CAN-SPAM, in which, receivers need to opt out of receiving messages in order for them to be illegal. This means that commercial messages can be sent legally until the receivers unsubscribe to them. CASL, unlike CAN-SPAM, extends to messages sent from outside Canada as well. It also provides for harsher penalties for offenders. Also, under CASL, even commercial messages that subscribers have consented to receive need to carry an opt-out mechanism, in order to make unsubscribing easier.

The rules prohibit sending of Commercial Electronic Messages (CEMs) without the prior consent of the receiver and categorize such messages as spam. Consent of the receiver is implied in cases where the sender has an existing business or non-business relationship or where the receiver has provided his e-mail address to the sender without expressly opting out of receiving any commercial messages. Only commercial messages that are sent by individuals who have a “personal” or “family relationship” with the receiver are excluded from the ambit of Commercial Electronic Messages. There has been some criticism about this provision in the statute. Any commercial message sent by an individual to another who doesn’t fall under the aforementioned category would be deemed to be illegal. While the “family relationship” clause doesn’t allow for much leeway, the much broader “personal relationship” might accommodate many more situations. The Government has also amended the legislation to expand the meaning of “personal relationship” to give some freedom to regular, personal mails and also added an objective test used to determine whether a given relationship is personal. Messages which help facilitate or complete or confirm any commercial transaction that the receiver has engaged in before the message is sent and third party referrals are excluded from the purview of CEMs.

Fines of up to US $10 million can be imposed on businesses, who engage in sending such unsolicited commercial messages to individuals, for each violation. Numerous factors listed under Section 20(3) of the legislation, have been provided in the legislation itself in order to ascertain the exact amount that the business would be fined.

Many countries have made spam messages illegal because of the potential damage that can be caused by to the receiver of these messages. Receivers face the threat of identity theft and various other online crimes because of these spam messages. Estimation suggests that losses caused because of spamming might be as large as $21.58 billion annually. Despite this, there are countries like India, Russia and Brazil where sending spam messages are not against the law and who are not only the highest in sending spam messages but are also among the top spam receivers.

Comment

Details

Published on Tuesday, 22 January 2013 17:31

Written by H. R. Vasujith Ram

Is the Internet ‘Essential’? : An Analysis of the German Federal Court Ruling

The Federal Court of Justice in Karsruhe, a German Federal court, has ruled that the Internet is as much of a daily necessity as a fridge or a car. This ruling was given, after it heard the case of a man who was unable to use his DSL internet connection for two months, from late 2008 to early 2009. The DSL connection also offered telephone and fax services. Interestingly, he had already been compensated for the extra cost of having to use a mobile phone in place of the DSL connection. But the consumer did not stop there – he went a step ahead. He also wanted to be compensated for not being able to use the Internet. The court gave a decision in his favour and ruled that the Internet is “essential”, and therefore Internet service providers must compensate customers in the event of their Internet connection not working. The court said that internet has overtaken several other mass media and has facilitated global exchange and has become crucial for negotiations and fulfilling public obligations. This decision raises interesting questions which must be contemplated upon.

One must remember that the plaintiff was compensated not only for the lack of service, but also for his injury of not having internet service itself. The Court said that the onus is on the subscribers to complain about the lack of service but stressed on an ADR program. As regards to minimum period of outage before a claim can be made, the direct compensation can be negligible. So it is clear that compensation in this case was awarded for the lack of internet itself, akin to damages for pain and suffering in an accident.

The primary issue is obviously whether the Internet is indeed so “essential” in our lives, that it should be termed as a civil right. The German court said that most people in Germany use the Internet daily and its disruption would have an immediate “impact on the course of everyday life.” The importance of the Internet in our daily lives cannot be denied. We use it various important purposes, including paying our telephone bills, researching, applying for jobs and meeting deadlines. But we also use it for a lot of un-important things as well. Accessing Facebook and surfing the Internet aimlessly cannot be called “essential.” That is why it is crucial to highlight the qualitative difference in the Internet being called “important”, and the Internet being called “essential.” It is definitely important, but calling it “essential” to life and according it the status of a civil right might be going too far.

Today, a plethora of activity like payment of bills, filling up forms, reading news, etc. is performed on the internet. As Bill Gates said, the Internet “is becoming the town square for the global village of tomorrow”. Taking away the internet would mean taking away all the activities from a person as part of the sentence. Techdirt, in its analysis, has likened it to “cutting off someone's electricity or water supply for months or more”.

The repercussions of this judgment are cardinal to note. In Germany, repossession agents are not allowed to impound necessities like car, bed, chairs, etc. The country's code of civil procedure (Zivilprozessordnung) protects items necessary for daily personal needs. How will the internet be treated in this context? This ruling can be treated as a landmark ruling, which will definitely lead to numerous debates. It is interesting to note that internet cut-off penalties widely used to combat piracy and copyright infringement will be affected, as you can’t take away something considered a rudimentary necessity.

There have been other recent developments as well. Finland made 1Mb broadband a legal right in 2009, with a plan for a general 100Mbps service by 2015 on track. A US appeals court overturned a lower’s court decision that had barred sex offenders from accessing the internet, terming the decision as “unconstitutionally overboard”. In 2009, France’s highest court declared internet access a ‘Basic Human Right’, in the process taking the teeth out of the HADOPI law, a stringent anti-piracy law. In July 2006, the UN Human Rights Council passed a resolution, affirming internet access as a basic human right. A debate was also stirred up after special rapporteur to the United Nations, Frank La Rue’s report “on the promotion and protection of the right to freedom of opinion and expression”.

In a country like India, where broadband statistics have shown steeply rising graphs in recent years, leading to very positive predictions, one can only wonder when whether similar legislations will ever be passed. Like in any other country, internet is a vital tool for development in India. Though such a ground-breaking ruling is unlikely in the near future, it is very much possible going by the way things are moving. Reliance on the internet is more than ever.

The original copy of the judgment can be found here (German).

Image taken from here.

Comment

Details

Published on Saturday, 05 January 2013 10:23

Written by Anirudh Dhawan

Radio Broadcast of Prank Calls

In a recent incident in Australia, two radio jockeys made a hoax call to King Edward VII Hospital in London, where Kate Middleton was being treated for acute morning sickness, imitating Queen Elizabeth II and Prince Charles and asked the hospital to divulge some intimate details about Middleton’s unborn child and general health. Three days later, the receiver of the hoax call, Jacintha Saldanha, committed suicide. Although the police have labelled the suicide as “unexplained”, the three suicide notes left by the deceased can lead us to assume that the suicide was a direct consequence of the whole prank call incident, as one of the three suicide notes specifically mentions the prank call. In the light of the above events discussing the position of law in India pertaining to radio and television broadcast becomes important.

Australian radio stations are expected to follow a certain Radio Code of Practice which is put in place by the Australian Communications and Media Authority (ACMA). Under the Code of Practice 6, section 6.1 (a) radio stations are not allowed to broadcast the words of an “identifiable person” unless the person has been told in advance that their words may be broadcast. The nurse in this case is an identifiable person in the sense that by listening to the tape, it can be ascertained that the person involved in the conversation is the nurse herself. Although the radio station claims that it tried to contact the hospital five times before this call was broadcast, the hospital denies this. A breach of this code would entail the ACMA authorities informing the radio station of the breach and the primary responsibility of resolution of these complaints lies in the hands of the radio stations themselves. Apart from certain complaints which are made directly to the ACMA, the authority steps in when the complainant is not satisfied with the response they receive or when there is no response for 60 days. Under the Code, the most extreme punishment that can be awarded is the loss of licenses of the radio stations. Even in Britain, the Ofcom’s Broadcasting Law authorised by Ofcom, the regulatory authority for broadcasting in Britain says that prank calls made for the “entertainment purposes” are not illegal per se, but the caller requires prior consent from the receiver before broadcasting the phone call.

Unlike both the United Kingdom and Australia where regulations governing broadcast of programmes on radio stations explicitly mention the broadcast of telephone recordings without prior consent of the individuals involved, there does not seem to exist any such provision for the aforementioned broadcast in India. In India, before starting a radio station, the applicants are required to enter into a Grant of Permission Agreement with the Ministry of Information and Broadcasting. This agreement lays down certain regulations which the radio stations have to obey in order to stay in operation. The regulations laid down under section 7 of the agreement are rather simplistic and primitive in nature not going the beyond the usual restrictions and not covering the intricacies involved in modern communication. The current provisions restrict radio stations from broadcasting anything that might threaten national security or might be against public interest. They also prevent stations from broadcasting anything which is objectionable, obscene, unauthorized or inconsistent with the laws of India. There have been attempts by the Ministry to amend the regulations, by drafting advisories which improve the regulations that govern the content that can be broadcasted on these radio stations. On few occasions the legislators have also tried to bring in new laws for broadcasting based on global standards but all such attempts have failed.

Hence, if such a situation had arisen in India, the scope of improvement or resolution or restriction of such cases may not have been possible due to a lack of sufficient laws dealing with the broadcast of conversations or interviews without prior consent of the individuals involved.

Comment

Details

Published on Wednesday, 26 December 2012 14:40

Written by H. R. Vasujith Ram

WCIT, Dubai Ends: Future Uncertain

The 12 day conference, which ended on December 14, ended in an impasse. This means there will be no major changes in the working of the internet, at least in the short-term. Although the next conference is expected to be held in May 2013, no major changes can be expected until 2015. When the WCIT Treaty was introduced, 89 of 144 eligible countries, including Russia, China, Indonesia, Brazil, Singapore, and Saudi Arabia, signed the treaty. Fifty-five countries reserved the right to sign later, but the U.S., U.K., Japan, India, Germany, Australia, Canada, and Italy were among the countries indicating they would not sign the document. Others gave no indication either way. The final Treaty can be found here.

It is to be noted that the last document on world telecom regulation was signed in 1988. Due to the emergence of the internet, there is a pressing need for a new regulatory framework. However, this process has been marred by heated debates between countries, who have so far failed to come to a consensus.

North America and Europe lead the brigade against the treaty.

Critics of the treaty said it would be highly ineffective and focussed criticism particularly on the language used. Proponents of the treaty say that it could be a “defining legacy” and has a “definite claim to legitimacy”.

Looking at the broader picture, it appears that the objection was centrally to the expansion of the scope of the International Telecommunications Regulations (ITR is a treaty signed in 1988 to facilitate “global interconnection and interoperability” of telecommunications traffic across national borders) to include the internet. The opponents protest particularly to the International Telecommunication Union (ITU), an agency of the United Nations, having a role in controlling public policy relating to the internet. This was elaborated upon in a statement released to Eweek.

A clause submitted by Russia, supported by countries like China and Saudi Arabia, for equal rights among nations to coordinate the “internet numbering, naming, addressing and identification resources” warrants attention. The US delegates insisted that the scope of the treaty should be restricted to the functions of traditional telecom service providers.

It is also reported that the US objected to Resolution 3. The resolution provides ITU with a mandate to formulate positions on internet related issues. Though the Resolution is not legally binding and its effect would have been minimal in shaping internet governance, the resolution encourages member states to use the ITU to formulate positions on Internet-related issues.

It is to be noted that the last document on world telecom regulation was signed in 1988. Due to the emergence of the internet, there is a pressing need for a new regulation. However, this has been marred by heated debates between countries, which have so far failed to come to a consensus.

You can further read the US Department of State release on the WCIT here.

In an analysis, the World Socialist Web Site looks at the other side of the picture. The internet has always been funded and administered by the US. Since 1998, the administration of the internet, funded by the US Department of Commerce has been managed by the private non-profit Internet Corporation for Assigned Names and Numbers (ICANN) located in California. The US is alleged to have been involved in several espionage and surveillance operations (read on the NSA surveillance program here and here), and their dominance over the internet is said to have allowed them to have played a vital role in these operations. This has disadvantaged and deprived other powers like Russia and China and led them promote an even-handed administration.

The failure of the Conference means that the world will have to wait, probably till 2015, to see the next few solid steps. There have been revolutionary developments and the internet is becoming increasing complex, with more and more mobile users from diverse locations. This calls for a quick but a reliable democratic approach to secure the future of the internet.

Written by: H. R. Vasujith Ram

Comment

Details

Published on Wednesday, 01 August 2012 13:18

Written by Krishna Thej

SMS Regulations of TRAI Declared Bad in Law

In a sigh of relief to many, the Delhi High Court lately declared the TRAI SMS Regulations as bad in law. The Court partially allowed the petition of Telecom Watchdog and read down Section 8 of the ‘The Telecom Commercial Communications Customer Preference Regulations, 2011’, in as much as it blankets non Unsolicited Customer Calls (UCC).

Sub-regulation 2 of Regulation 20 of the aforesaid Regulation, in effect, obligates access providers to limit the number of Short Message Service (SMS) to a hundred a day per SIM (Subscriber Identity Module). A consequent amendment to this Regulation resulted in the cap being lifted to two hundred SMS a day.

Senior Counsel, Prashant Bhushan, appearing on behalf of the petitioners, argued the impugned Regulation as arbitrary and uncalled for as it transgresses the sacrosanct right of free speech embodied in Article 19(1)(a) of the Indian Constitution. He advanced several propositions offered by the Supreme Court in seminal cases like Sakal Newspapers and Bennett Coleman to bear out his arguments and underscore the vitality of the right to free speech.

The respondents, pleading through Meet Malhotra, argued to convince the Court that plausible restrictions could be fastened on the right to free speech as envisaged by the Constitution under Article 19(6) in the larger interest of the public. They submitted that the UCC have been petulant, and such regulations should come about to tackle their morass. They contended that no one possesses an inherent right to use Air Waves that have been declared a public property, as observed by the Supreme Court of India in Cricket Association of Bengal case.

The Court acceded to the respondent’s submission that TRAI’s regulations would go a distant way in curbing the menace of UCC. It took the view that UCC impinges upon the privacy of others. It re-iterated that the right not to listen and not to be compelled to listen is an important component of the right to free speech. Also, alluding to Hamdard Dawakhana case, it opined that UCC would not be within the expanse of free speech as commercial speech cannot draw support out of the Constitution. In the result, it said the Regulations qua UCC do stand the test of constitutional validity and thus hold water in its view.

Per Contra, a propos non-UCC, the Court said the questioned Regulations do fetter the right of free speech. It ruled the Regulations as implausible restrictions that cannot be saved by Article 19(2) of the Constitution and set aside the cap of two hundred SMS a day.

Guest contribution, written by: Krishna Thej, 3rd Year, B.A., L.L.B. (Hons.), RGNUL, Punjab.

Comment

Details

Published on Saturday, 12 May 2012 13:12

Written by Shourya Sengupta

Airtel Rolls out 4G Services in Kolkata, to Add 3 more Circles, Expensive Tariffs?

Bharti Airtel became the first service operator in the country to launch 4G services last month. With the company opting for a staggered launch in Kolkata, 4G services will not be available all over the city but in a few identified pockets. “We have identified 20-25 clusters in Kolkata comprising 50% of data usage and this is where we will provide the 4G services at this point of time,” the company’s CEO Sanjay Kapoor said.

The Company plans to launch 4G services in Bangalore by this month. “Huawei has set up and deployed our Bangalore network. After Bangalore, we will launch in Pune followed by Chandigarh,” Kapoor said, without giving any time frame.

Airtel had won the broadband wireless spectrum of 20 MHz each in the 2.3 GHz band in the four circles in the auction two years ago. When asked if the Company planned to bid for the 4G spectrum in the 700 MHz band in the remaining circles as and when the government auctions it, Kapoor said, “We are interested in having a pan-India footprint, but first we need to look at the offering in the auction before we decide.”

In order to avail the services, subscribers will have to first invest Rs. 7, 750 on a wireless broadband device or Rs. 7, 799 on a 4G dongle. After investing on a device a user can choose monthly rental plans ranging from Rs. 999 with free usage quota of 6 GB to Rs 1, 999 which would offer a free usage quota of 18 GB. The tariff plans are almost at par with the Company’s current wireline broadband services.

Compared with existing wireless devices in the market that are available at less than half the price, Airtel’s price point does appear to be a bit steep for individuals but Kapoor explained that there is sufficient pent-up demand for such services. “I agree the devices do appear to be expensive, but this is because TD-LTE technology is very new and the ecosystem is yet to mature. However, if you were to compare the pricing of the services we are offering to the subscribers, it is very much comparable to the existing wireless technologies,” he said.

Kapoor also said that 4G services provides 10 mbps speed against the 1 mbps offered by existing technologies. “As broadband gains popularity, speed becomes a killer application and with both India and China opting for TD-LTE technology, volumes will bring the devices prices down,” he added.

Prashant Singhal, who tracks telecom at Ersnt & Young, seems to agree: “Internationally one would get a 4G dongle for $200 and an indoor CPE with Wi-Fi for anything between $300 and $400, so this is competitively priced.”

Image taken from here.

Comment

Details

Published on Monday, 07 May 2012 13:06

Written by Madhavi Khare

West Bengal Chief Minister decides to start her own newspaper and TV channel

Mamta Banerjee, the chief minister of West Bengal, has decided to start her own TV channel and newspaper. Media’s portrayal of the ruling government of West Bengal in a negative light and that the positive acts of the government have not been highlighted, has been cited as a one of the main reasons for this decision. People have been apprehensive about this particular decision and have criticized it by emphasizing the need of media as an independent institution so that it can serve the goals of a fourth estate.

The need for independent media cannot be ignored. It is important to have an unbiased coverage of the policies undertaken by the government so that the citizens are in a position to make an informed choice. At the same time it cannot be ignored that the West Bengal is making its plans to start a TV channel known to the public and not making such alliances covert. Thus when reading a piece of news published by the newspaper owned by Mamta Banerjee’s government the public would know that it is bound to be in favour of the government. So this should ideally not affect the opinions people form of the government.

Also it is important to draw a distinction between the situation in West Bengal and that in Tamil Nadu. In Tamil Nadu, almost all governments own or have alliances with media houses, most of which are covert in nature. These alliances span across almost all kinds of medium of conversation and each government owns a string of newspapers, TV and radio channels. This has a major impact on the information that reaches the market of ideas because none of it comes from an independent institution. Thus the opinions that the public forms are greatly influenced by the ownership patterns. As far as West Bengal is concerned, there has been no evidence of such an ownership pattern wherein the influence of the political parties has been so deeply felt. So the situation is not comparable to that in Tamil Nadu and if the government owns a newspaper and a TV channel and informs the public about the same, the diversity in the market of place of ideas would not be seriously affected.

The only thing that might pose a problem is the assumption that the people across all sections of the society will be reasonable enough to understand the editorial tilt of the proposed TV Channel and the newspaper towards the ruling government. Some might be unaware of such a bias but the number of people relying solely on this newspaper and TV Channel will not be so big as to affect the opinions of the society at large. Also its implications will be the same as that of Doordarshan, which is owned by the government. Such intrusions of the government in the marketplace of ideas can thus be said to affect the diversity that free speech enthusiasts want to achieve.

Image taken from here.

Comment

Details

Published on Thursday, 03 May 2012 12:15

Written by Madhavi Khare

200 SMS per day limit imposed by TRAI challenged in the Delhi High Court

On 27th September, 2011 TRAI limited the number of SMS that could be sent from one mobile connection to hundred under the pretext of curbing the menace of telemarketing and other such unsolicited text messages. After much controversy, the limit was raised to two hundred SMS per day on 1st November, 2011. This limit has been challenged by a NGO called Telecom Watchdog through a public interest litigation filed by Mr. Prashant Bhushan.

The petition challenges this limit on three main counts. Firstly, the change in policy was arbitrary as there was no prior consultation with the stakeholders. Secondly, the Telecom Commercial Communications Customer Preference Regulations, 2011 were already in place to curb the menace of spam text messages. There was no requirement of such a limit. Thirdly, this restriction interfered with the freedom of speech and expression of the users. This is so because the supreme court has recognized that people have the right to speak freely over the telephone under Article 19(1)(a) of the Constitution of India and as held in the cases of Sakal Newspapers and Bennett Coleman, any reduction in the volume of speech directly affects the fundamental right guaranteed under Article 19(1)(a) of the Constitution.

The TRAI Regulation seems to be an embargo on the exercise of the right to free speech instead of being a measure for regulating spam. Such a regulation on the volume of speech might have been valid as far as broadcasting is concerned because of the scarcity of available spectrum. Since scarcity of medium is not a problem as far as SMS are concerned, this Regulation does not seem to be reasonable enough in light of the theories propounded by Yochai Benkler and Lee Bollinger which drew a distinction between the rulings of the US Supreme Court in Miami Herald Publishing Company v. Tornillio and the Red Lion Broadcasting Company v. FCC Case. While the judgment in Miami Herald which dealt with print media held such a regulation to be valid, Red Lion dealing with broadcasting did not. Thus, it seems unlikely that this Regulation can stand the test of reasonability.

As far as spam texts are concerned, the spammers have discovered other alternatives including using servers and numbers located outside India for the same purpose. It has only ended up affecting the end-consumers who use SMS as a means of communication. Also, other counter measures such as limiting bulk SMS special tariffs were sufficient to discourage non-registered spammers.

In December, 2011 the Government was asked to file a reply to the impugned PIL and the hearing has been fixed for 3rd May, 2012.

Comment

Details

Published on Tuesday, 01 May 2012 13:00

Written by Akshat Gupta

US may Bring a Federal Law Banning the Use of Cellphones While Driving

Ray LaHood, US Transportation Secretary, recently proposed the enactment of a federal law to ban talking or texting on a cellphone while driving. According to him, the ban should be imposed on any person driving any type of vehicle on any road in the Country. He feels that the only way to deal with this ‘national epidemic’ of talking on phones while driving is the enactment of a tough federal legislation. LaHood opined that the police must be granted the power “to write tickets when people are foolishly thinking they can drive safely or use a cellphone and text and drive.” The Transportation Secretary has previously criticized this ‘behind-the-wheel’ use of cellphones and other devices but his opinion on enacting a federal law to curb this is taking it to a whole new level.

This move by LaHood comes in light of the fact that according to an estimate by the National Highway Traffic Safety Administration, almost 3,000 fatal traffic accidents last year were a result of distracted driving. The reaction time of a person while driving is delayed due to the use of a cellphone to the same extent as having a blood alcohol concentration of .08, the legal limit.

According to Gary Biller, President of the National Motorists Association, however, this proposed law is unnecessary. According to him “it shouldn’t matter if the driver is distracted by a conversation with another vehicle passenger, tuning the radio, eating a snack, or talking on a cell phone and the existing laws cover all those distractions and more.”

LaHood, in response to Gary Biller’s opinion, stated that he was not so concerned about people who were distracted by a conversation, or by turning the radio or eating a snack because “not everyone does that.”On the contrary, “everyone has a cell phone and too many of us think it is OK to talk on our phones while we are driving.”

According to LaHood, the instant situation of using cellphones while driving is comparable to the problem of drunk-driving 20-30 years ago. “It used to be that if an officer pulled you over for drunk driving, he would pat you on the back, maybe call you a cab or take you home, but he wouldn’t arrest you,” he said. “Now that has changed, and the same enforcement can work for people who talk on cell phones while driving” he added.

Comment

Details

Published on Friday, 27 April 2012 11:14

Written by Malavika Chandu

No more Passwords?

In an attempt to reduce the use of passwords, and to increase the security of gateway mechanisms, DARPA is financing research which makes authentication easy, and makes passwords redundant. This authentication is meant to be automatic, and is based on a person’s key stroke.

Every person has a unique method of typing which makes her uniquely identifiable: the length of depression of each key, the speed of typing, and other similar characteristics. Although this changes with the mood of the person, there would still be some underlying characteristics which could be used by a program to distinguish between people, and can, in theory, prevent mimicking.

There are several studies currently being conducted on the subject, the results of one is available here. This method is intended to allow continuous monitoring and tracking, unlike a password, which is only an entry-level check, and can be easily hacked. It is assumed, on the other hand, that to change motor abilities will not be as easy, and will therefore be more secure.

Image taken from here.

Comment

Details

Published on Wednesday, 25 April 2012 11:11

Written by N. Sai Vinod

More Teeth for the Telecom Regulatory? DoT considering an Amendment to the TRAI Act, 1997

The Department of Telecom (DoT) is considering a possible amendment to the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) after the Authority’s repeated request for stronger regulatory powers for ensuring stricter enforcement of India’s telecom regulatory policy. Section 11(1) of the Act largely imposes universal service obligations on the Authority to recommend licensing conditions, assist in revenue sharing arrangements, facilitate competition in the sector, promote efficiency communication, protect consumer interests and monitor quality of service.

The predominant activity of the Authority, however, appears to be settlement of disputes between service providers and/or service provider and consumers. Moreover, the Authority which assumes powers of a civil court in discharging its quasi-judicial functions, can issue binding orders to the parties. Non-compliance of TRAI’s orders can entail fine upto two lakh rupees as per Section 20.

The issue, however, is with respect to lack of legal force behind its recommendations. Section 13 gives the Authority the power to issue directions over matters specified under Section 11(1). The Authority, however, does not have penal powers in enforcing compliance with its directions although it is competent to set standards. Illustratively, TRAI assists in formulating and monitoring compliance of license conditions by service providers. The power to revoke in case of non-compliance, however, vests with the Department of Telecom (DoT).

Any measure towards stronger compliance of telecom norms although laudable, on a cautious note; the technical competence of the Authority does not make a favourable case for granting penal powers. The DoT, rightly so, has sought a detailed report elaborating the need for wider powers.

Comment

Details

Published on Monday, 23 April 2012 12:51

Written by Shourya Sengupta

The Dirty Picture too Dirty for Broadcasting on Television

On Friday, a Division Bench of Justices Bhushan Dharmadhikari and Ashok Bhangale directed the Union Information and Broadcasting Ministry to take a decision on suitability of screening after Sony Channel informed it had cut as many as 56 scenes from the film that fetched national award for Balan who played actress Silk Smitha in the movie.

Two days after Nagpur Bench of Bombay High Court directed the Ministry, the latter barred its telecast scheduled for Sunday. A ticker tape announcement on the channel just before 12 noon informed viewers that the film could not be telecast due to “unavoidable circumstances.”

The Ministry had intimated to Sony Channel on Saturday asking it to slot the film late in the night. It stated that since the film was awarded ‘U/A’ Certificate, it was not suitable to be telecast during the day and evening hours. Even Central Board of Film Certification was in favour of telecasting the ‘U/A’ certified film only after 11 PM ‘when children supposedly go to sleep’. The Channel also received complaints from parents about the film containing bold scenes and double meaning dialogues.

Pravin Dahat, who had filed the PIL in this regard, said the Government finally realized that the film was not suitable for viewing with the family. “It’s a good decision and our efforts have borne fruit. The decision would benefit all and credit must go to the judiciary,” he said. His lawyers Anil Kumar and Nirbhay Chawhan stated that they were expecting such a decision from the Union Government owing to severe opposition from parents. “The decision will save parents the embarrassment of watching the movie with children. The bar and bench deserves credit along with the union ministry,” he said.

The counsels reiterated their earlier contention that even routine content on the small screen was not suitable for viewing with family nowadays. “If the movie was allowed to be screened at normal viewing hours, it would set a wrong trend,” they said.

Image taken from here.

Comment

Details

Published on Sunday, 22 April 2012 15:42

Written by Shouvik Kr. Guha

Telenor threatens to sue India: The 2G Debacle continues to irk

It seems like the ripples of the 2G Scam judgment by the Supreme Court are yet to die down, with the telecom companies losing out on their 2G licenses because of that order starting to lash back at the Indian Government. Yet another company to start such proceedings is the Norwegian Telecom operator Telenor Asia Pte Ltd., who is at risk to lose 22 2G mobile licenses granted to its Indian joint venture Uninor, owing to that order, and who has served a notice to the Indian Government on March 26, 2012, threatening to seek recourse via international arbitration and claiming damages worth around Rs. 70,000 crores.

Telenor has sought to invoke the provisions of India’s Comprehensive Economic Cooperation Agreement (CECA) with Singapore to allege failure on the part of the Indian Government to protect Telenor’s investment and has demanded that the Government take concrete steps to resolve the matter within 6 months. The notice has been sent to Prime Minister’s Office, the Telecom Department and the Corporate Affairs Ministry.

As per Telenor, the cancellation of licences and the resultant loss of investments constitute a breach of India’s obligation under the CECA. Telenor defends its actions by stating that it had made such investments by adhering to all existing legal provisions, including approvals from the Foreign Investment Promotion Board and the Cabinet Committee on Economic Affairs and despite that, it is being made the scapegoat of a change in the Government’s policy. Also, the proposed mode in which the redistribution of said licenses is to take place may cause further breach of CECA provisions. The compensation sought by the company, in accordance with CECA provisions, is to be equivalent to the market value of the expropriated investment at the time of the decision of cancellation of licenses by the Supreme Court on February 2, 2012, earlier issued during A. Raja’s term in the Telecom Ministry. It roughly amounts to $14 billion or around Rs. 70,000 crores, as mentioned above.

Despite having served the notice, Telenor still believes that the matter can be resolved through dialogues with the Government and only perceives international arbitration as a last resort. Telenor had entered the Indian market through its Singapore branch, is already embroiled in a legal tussle with its Indian partner Unitech, and has engaged in a search for another Indian partner.

Insofar as the Indian Government is concerned, however, this move by Telenor seems to further open the 2G Pandora’s Box, given that it is not the only one of its kind. Sistema, a Russian company, had invoked the provisions of the India-Russia Investment Agreement a few weeks ago on a similar line of argument. One only hopes that the Government, in its effort to dust its hands off earlier misdemeanors, does not end up irking foreign investors by giving them the impression that their investments in India are unsafe owing to political volatility.

Image taken from here.

Comment

Details

Published on Wednesday, 18 April 2012 15:33

Written by Vineet Bhalla

TRAI’s Consultation Paper on Issues Related to Advertisements in TV Channels

The Telecom Regulatory Authority of India has recently come out with a consultation paper on ‘Issue Related to Advertisements in TV Channels’ for discussion with the relevant stakeholders, that is, the television channels, the companies that come out with advertisements for their products as well as the viewers.

Since advertisements generate such contrasting feelings among these stakeholders, with broadcasters calling them their revenue lifeline and television viewers berating them for interrupting their viewing pleasure, it will be interesting to see which way the resolution to this dispute by TRAI swings.

The Centre of Media Studies conducted a survey that shows why TV viewers are repelled by TV ads. According to the survey, the duration of ads in six major news channels over the last four years has been 35% of the prime time slot (7-11pm), against the allowed hourly limit of 20%. The maximum yearly average is as high as 47.4%.

“There is no doubt that in India, the television viewing experience is bad,” says Devendra Parulekar, Partner at Ernst & Young. He estimates that the top four-five general entertainment channels are running around 14 minutes of advertising in a clock hour, which is a clear violation of the permitted limit of 12 minutes (10 minutes of ad commercial and two minutes of channel promotion time). “Besides, during film climaxes, the ad breaks' frequency goes up and volume levels on your television go through the roof when the ads come on” he stated.

Consumers are also dissatisfied with the ad breaks they have to suffer despite paying channel subscription on the direct-to-home (DTH) platform. “However, nowhere is the world is there a sustainable model without advertising,” says a rueful Bhaskar Bhattacharya, a user of DTH TV.

While recognising that free-to-air (FTA) channels need their ad revenues, TRAI says that in the pay channel scenario, ad dependence comes down. But then, it also cracked down on subscription rates, capping channel rates for DTH/digital TV at Rs 5.30 a month, Parulekar said. “TRAI is proposing bringing down 12-14 minutes of ad time on pay channels to six minutes. All major general entertainment, sports and news channels are pay today. Close to 80% of ad revenues go to pay channels. If the ad time drops, ad rates will go up. TRAI's proposal would shave off nearly Rs 5,000 crore of the Rs 11,600 crore ad revenue a year.”

Another major change contemplated is the digitisation of the cable TV industry, which will take at least 30 months. “Limiting ad time before the digitisation is complete could be killing for the broadcasters,” he said.

Ashish Sehgal, Executive Vice-President, Zee Entertainment Enterprise Limited (ZEEL) and Head, Network Sales, ZEEL and 10 Network, said TRAI's subscription limits will cause a 50 % reduction in ad time which is not sustainable as it will put revenue dependence for broadcasters at 70:30 in favour of advertising. He says, “How will broadcasters ensure good programming quality without money? Channels are already looking at self-regulating their ad time.”

Punitha Arumugam, group CEO, Madison Media, opines that news and sports channels, as well as other smaller channels, will suffer the most.

A senior official from Star India opposed this move from a totally different perspective. He claims that TRAI's proposals were already present in the Cable TV Act & Rules. He adds that TRAI does not have any power to regulate advertising; the Information and Broadcasting (I&B) Ministry does. TRAI obviously disagrees, saying it has been given some decision-making powers by the government.

Broadcasters are looking at the Indian Broadcasting Foundation (IBF) as a last resort. Naresh Chahal, Director-Finance, IBF, said “We will talk to the I&B Ministry as well, if required.”

Viewers like Bhattacharya said things were perhaps best left to the market. He reasons that people will not watch a channel if ads are being bumped up too high on it.

Parulekar agreed: “Why put subscription caps? Let the customer choose. There may be pressure at the base pack level of Rs 150, but why keep the top end of the market price-inflexible?”

Image taken from here.

Comment

Details

Published on Saturday, 14 April 2012 18:04

Written by Kasturika Kaumudi

TRAI Refuses Exit Policy For Telecom Operators

The Telecom Regulatory Authority of India (TRAI) which in December, 2011 had put up a pre-consultation paper on the need for an exit policy for telecom companies has decided to recommend the government against the creation of a separate exit policy for telecom companies who do not want to continue offering telecom services. TRAI has also sought comments from stakeholders on this by April 5, 2012. TRAI has based its decision on the responses from stakeholders and the Supreme Court's February 2, 2012 verdict of cancelling 122 mobile permits issued in 2008.

Earlier in December, 2011 the Telecom Commission, India’s apex policy making body in the telecom sector, had directed the Department of Telecom (DoT) to prepare an exit policy for the telecom operators as under the current licensing norms, there is no exit route offered to operators who have taken a telecom license. In accordance with such direction the DoT had sought the TRAI’s recommendations on the exit policy for such telecom companies.

The requirement of such an exit policy was mandated in view of a number of new players not being able to roll out services because of lack of funds and the spiralling costs in the face of intense competition due to the presence of a large number of operators and also their inability to even start services in some cases, owing to the on-going investigation in the 2G scam. The DoT has issued notices to cancel licenses of some of these players for missing roll out targets and not starting services even after 3 years. In view of these developments the DoT had sought TRAI's views on how such players can be given an exit route.

Now since there will not be an exit policy for such companies, the TRAI has said that the entry fee will also remain non-refundable and the telecom operators can give an advance notice of 60 days to surrender the permits. TRAI further went on to say that, "The provision for surrender of license is already prescribed in the draft guidelines. As such, the Authority (TRAI) does not find any justification for a separate exit policy in case of Unified Licensing Regime." TRAI has already declared that all future licenses will be Unified Licenses and entry fee for pan-India license is only 20 crores.

Comment

Details

Published on Tuesday, 10 April 2012 17:57

Written by Autri Saha

TRAI Argues For Simplification Of Mobile Connection Guidelines

Recently, the Supreme Court, while hearing public interest litigation by Kolkata-based businessman Avishek Goenka, had asked Telecom Regulatory Authority of India (TRAI) to provide its views and suggestions on Mobile Connection Guidelines, which has been framed by Department of Telecommunications. The PIL was filed for seeking a direction for strictly following the verification of consumers before providing connections for mobile phones. A bench comprising Chief Justice S.H. Kapadia and Justices A.K. Patnaik and Swatanter Kumar asked TRAI to respond whether the guideline is sufficient to ensure that proper verification is done by the cellular operators before providing mobile connection.

The Centre has framed new mobile verification norms which are aimed at tightening the process of verification for providing pre-paid and post-paid connections by mobile phone operators. The guidelines were introduced in the wake of increasing number of subscribers in the country. On average, there are about 10-12 million subscribers every month. In 2011, the total number of mobile users in the country has surpassed 670.60 million. The guidelines call for strict adherence to the Customer Acquisition Form (CAF) for verification of subscribers in the interest of national security. The new guidelines were drafted in view of increasing use of mobile phones for terror strikes in the country. Counsel appearing for the TRAI, however, contended that some of the norms including the CAF need to be simplified, without compromising the need of the security agencies.

In its response, TRAI felt that there should be easing out of mobile connection guidelines, and pleaded before the Supreme Court that the new norms will put “unnecessary burden” on operators as well as subscribers. According to TRAI, the CAF should be simplified without compromising the need of the security agencies. Further, due to the absence of a unique identification database for the whole country it would be difficult to verify the credentials of all mobile users and require operators to hire a much larger workforce.

The guideline's emphasis on verification of documentary requirements, updating the subscriber details in the database and activation of the SIM by licensees' employees would amount to undue burden on the operators and will translate into a substantial increase in the number of on roll employees. Also it was argued that since the employees of the telecom companies may not be there in every small corner of the country, the CAF would have to be brought to the nearest city before activating the connection.

TRAI also pointed out that the proposed draft instructions of the DoT fails to mention the unique CAF number. Putting CAF numbers on each and every application form prior to their distribution will change the way these are being distributed in sales channels. Therefore, it said, once the CAF is received at the central warehouse a unique number should be assigned to it before SIM activation.

TRAI also questioned the need for re-verification of the subscriber when changing tariff plan based on the reasoning that the change of connection from prepaid to postpaid and vice-versa is basically a change of tariff plan and hence in cases where verification has already been done the re-verification may not be required.

The telecom regulator also argued that the new norms would result in activation of new mobile connections only after six-seven days, negating the goal of faster delivery of service.

Comment

Details

Published on Saturday, 07 April 2012 17:52

Written by Debanshu Khettry

Myanmar Reviews its Draft Media Laws with aid from UNESCO and International Media

Myanmar’s Ministry of Information in co-operation with UNESCO and several sections from international media recently organized a workshop [12 March – 16 March, 2012] where the country’s first draft media laws prepared by the Ministry of Information (Myanmar) were reviewed. Discussions were primarily held on press, publishing, printing and broadcast law. The Ministry of Information has requested UNESCO’s assistance in media development and capacity building in developing media laws based on best international practices.

“Myanmar is now transforming to a democratic society……. Under these circumstances media policy is a vital issue and …….according to the constitution, this is a compulsory matter for new governance” said U Ye Htut, Director General of Press Scrutiny and Registration Division, Ministry of Information, Myanmar.

The primary elements of the new law would be the establishment of independent Press Council and a Broadcast Council, no a-priori censorship, adherence to principles of freedom of expression and the right to information (mainly based on provisions laid down in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights) and a framework for new online media.

Myanmar’s attempts at framing a democratic media law based on international consultation and assistance is a commendable effort. Being a late entrant, it has much to learn from mistakes made by other countries and ensure that they do not repeat the same. Director General Htut considered this first ever international workshop as a very significant achievement.

Comment

Details

Published on Thursday, 05 April 2012 17:40

Written by Shayonee Dasgupta

Spectrum to be delinked from Licenses in Telecom Policy 2011

One of the most debated and critical change brought in by the National Telecom Policy 2011 was the delinking of spectrum from licenses to bring in the system of unified licenses. Announcing the new guidelines Mr. Kapil Sibal noted that there will be uniform licence fee across all telecom licenses and service areas which will progressively be made equal to 8 per cent of the adjusted gross revenue (AGR) in two yearly steps starting from 2012-13.

Some of the chief features of the new licensing regime as reported by Money control would include:

1. Validity of existing unified access service (UAS) licences may be extended for another 10 years at one time.
2. On extension, the UAS licensee will be required to pay a fixed fee: Rs. 2 crores for the Metro and category A Circles; Rs. 1 crore for category B circles; and Rs. 0.5 crore for category C circles.
3. The prescribed limit on spectrum will be 8 MHz and 5 MHz for GSM and CDMA technologies respectively, for all service areas other than Delhi and Mumbai, where the limits will be 10 MHz and 6.25 MHz, respectively. However, the licensee can acquire additional spectrum beyond the prescribed limits in the open market, should there be an auction of spectrum, subject to the limits prescribed for the merger of licences.
4. The spectrum shall be paid for by separately. While extending the licence, the licensee shall be assigned spectrum only up to the prescribed limit, or the amount of spectrum assigned to it before the extension, whichever is less. Spectrum assigned to the licensee in excess of the prescribed limit shall be withdrawn.
5. Decisions on all matters relating to spectrum pricing will be taken separately.

Details

Published on Tuesday, 03 April 2012 14:45

Written by Madhavi Khare

Italy decides to subject YouTube to the same Broadcasting Regulations as Television

The Italian Authority for Communications has passed two resolutions classifying internet video and internet radio sites like YouTube and Vimeo as television thereby subjecting them to the same broadcasting regulations as television. This is going to have serious legal implications for Google (which owns YouTube) as now it would be accountable for each and every video that is uploaded on YouTube. They will thus have to comply with certain rules and regulations including:

• They will have to pay a tax of €500.
• Content considered inappropriate for children will have to be restricted to certain times of the day.
• Corrections will have to be made within 48 hours, when requested by any person or group who feels they have been defamed in a video.

Imposition of such regulations does not seem to be justified because the basic architecture of such websites is not the same as television even though both are audio-visual information sharing mediums. The amount of control that the service providers can exert on both is very different. While on television the content and time for broadcasting of each and every program can be pre-decided, it is not the same for such websites because they provide for video sharing and any person who can access the website can upload a video. Google only provides a platform for such sharing and does not exercise any editorial control over it. This is a perfect illustration of the kind of problems technology convergence is giving rise to.

This regulation seems to be in blatant violation of the EU Electronic Commerce Directive passed in 2000 that clearly states that whenever a service only provides a transmission service, “the service provider is not liable for the information transmitted.” The EU considers these services “mere conduits” as long as they “do not initiate the transmission, do not select the receiver of the transmission and do not select or modify the information contained in the transmission.”

There are rumours that these regulations are just a way to help Mediaset, a company owned by Italian Prime Minister Silvio Berlusconi, who is currently suing YouTube in Italian courts for about €500 million because it allowed users to upload copyrighted video taken from their broadcasts. These resolutions would only enforce the idea of YouTube’s responsibility for its users to a judge.

So far Google has not come up with any response to this change. Lets see whether Italy forces it to take measures similar to those it took against the strict censorship regime in China of withdrawing its services.

Comment